Request By:
Hon. Suzanne M. Warner
Chairman LBA/MH Committee
Jefferson County Courthouse
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; John H. Gray, Assistant Attorney General
You have written asking:
If an individual is detained under KRS 202A.050 which mandates a hearing within forty-eight hours of detention, must the individual be released (unless he voluntarily commits himself) if a hearing is not held within that time period when, subsequent to detention but before the forty-eight hours have elapsed, a sixty-day petition is initiated?
It is the opinion of this office that if an individual is detained under KRS 202A.050 and a hearing is not held within 48 hours, the individual may be detained further only if: (1) a 60-day petition under KRS 202A.070 has been initiated; (2) if notice of the commencement of the proceedings has been given to the respondent; and (3) if examining physicians have certified that detention is necessary as set forth in KRS 202A.070(5).
Under KRS 202A.070(5) an individual may be retained in or transported to a hospital pending a hearing, if notice of the commencement of the proceedings is given to the respondent and if the examining physicians certify: (1) that the respondent is a mentally ill person who presents an immediate danger or an immediate threat of danger to himself or others as a result of mental illness; (2) that he can reasonably benefit treatment; and (3) that hospitalization is the least restrictive alternate mode.
This office believes, therefore, that an individual, who has initially been detained under KRS 202A.050, may be detained beyond 48 hours without a hearing if the above mentioned provisions of KRS 202A.070 have been complied with. Strictly speaking, the individuals detention beyond 48 hours without a hearing would be pursuant to KRS 202A.070 and not 202A.050.